ARGUMENT FOUR: The Northwest Ordinance proves that the First
Amendment did not separate church and state.

Research for this section by Jim Allison/writing by Tom
Peters

The Northwest Ordinance is perhaps the most frequently cited
accommodationist "proof" that the Constitution did not separate
church and state. Given it's importance to the accommodationist
position, our discussion of the Ordinance will be fairly
detailed.

The accomodationist argument

---Background:

The Northwest Ordinance was first enacted by Congress in
1787, when the nation was still operating under the Articles of
Confederation. The purpose of the Ordinance was to create a
temporary government for the Northwest Territory (a huge swath of
land that extended from the great lakes to the Ohio river
valley), and to establish a procedure by which territories could
apply for admission into the Union. The Ordinance was reenacted
with very minor changes in 1789, after the passage of the
Constitution.

---The argument:

Accommodationist make at least two claims about the Northwest
Ordinance: (1) the Ordinance in some way violates the
separationist reading of the First Amendment, and (2) the
reenactment of the Ordinance in 1789 can be read as a sort of
commentary on the First Amendment.

As to (1), accommodationists argue that the first sentence of
Article III of the Northwest Ordinance violates the separationist
understanding of the First Amendment. The sentence reads as
follows:

Religion, morality, and knowledge, being necessary
to good government and the happiness of mankind,
schools and the means of education shall forever be
encouraged.

Accommodationists note that the wording of Article III seems
to link the encouragement of education to the promotion of
religion. One accommodationist, David Barton, for example, goes so
far as to suggest that Article III "required religion to be
included in schools" (The Myth of Separation, p. 39). Less
extreme accommodationists would claim merely that the wording of
Article III indicates that the authors of the Ordinance were
comfortable with "promoting religion, morality and knowledge in
public education" (John Baker, "The Establishment Clause as
Intended...," in Eugene W. Hickok, Jr., The Bill of Rights:
Original Meaning and Current Understanding, p. 49).
Additionally, the language of the Article seems to link religion
to "good government," which can be read as supportive of the
accommodationist position.

As to (2), accommodationists note that the Northwest
Ordinance was reenacted by the same Congress that finalized the
text of the First Amendment. Accordingly, accommodationists argue
that the Ordinance indicates that the First Amendment was not
intended by Congress to rule out a close connection between
government and religion. David Barton, the accommodationist quoted
above, for example, notes that,

The Northwest Ordinance received final House approval
on July 21, 1789, Senate approval on August 4, 1789,
and was signed into law by President George Washington
on August 7, 1789, in the midst of the time that the
same Congress was formulating the First Amendment (from
June 7, 1789, to September 25, 1789). (The Myth of
Separation, p. 37)

and then later argues:

Since the same Congress which prohibited the federal
government for the "establishment of religion" also
required that religion be included in schools, the
Framers obviously did not view a federal requirement to
teach religion in schools a violation of the First
Amendment. (The Myth of Separation, p.
39).

The Separationist Response

While the accommodationist argument looks plausible on its face, a
little digging suggests that it self-destructs on the historical
and legal data. Not only does the Northwest Ordinance not violate
the separationist understanding of the First Amendment (or
otherwise support accommodationist claims), the first sentence of
Article III was placed in the Ordinance under the most suspicious
of circumstances.